Scary Iran Plotter Gets 25 Years

The prosecutors in Manssor Arbabsiar’s case succeeded in convincing Judge John Keenan that his was a real plot that must meet a harsh sentence to deter others from being entrapped in a US scheme involving fake drug cartel members. He got the full 25 years the government sought.

U.S. prosecutors sought the statutory maximum sentence of 25 years for Arbabsiar, saying in a court filing May 2 that the “seriousness of this offense and importance of deterrence in this context cannot be overstated.”

Manhattan U.S. Attorney Preet Bharara in a statement called Arbabsiar “an enemy among us” and a “key conduit for, and facilitator of, a nefarious international plot” to kill the ambassador and as many innocent bystanders needed to finish the job.

Lawyers for Arbabsiar had sought a lower sentence of 10 years, contending he had provided assistance to U.S. authorities after his arrest and citing purported mental health issues.

But Keenan emphasized the need to send a message to those who might consider future crimes like Arbabsiar’s “will not be tolerated” in the United States.

“In a case like this, deterrence is of extreme importance,” Keenan said.

Once all the relevant transcripts have been docketed, I’ll circle back to this issue. But for the moment, I wanted to point to three paragraphs in the government’s sentencing memorandum.

Defense counsel also argues that Arbabsiar’s assistance to the Government following his arrest demonstrates his “sincere remorse,” that because he is remorseful he will not re-offend and therefore that a sentence of ten years is sufficient. (Def. Mem. at 23). To the contrary, Arbabsiar’s assistance to the Government does not warrant a sentence below the 25-year statutory maximum. First, Arbabsiar’s cooperation, at best, was incomplete. While Arbabsiar spent approximately ten days describing to law enforcement agents his involvement and that of his Iranian military co-conspirators in the assassination plot, and placed several recorded telephone calls to his co-conspirator Shakuri at the direction of the agents, Arbabsiar thereafter abruptly refused to cooperate further despite the Government’s request that he continue to do so.3 Nor was Arbabsiar available to the Government as a testifying witness against his coconspirators. Therefore, Arbabsiar’s assistance to the Government was ultimately of limited usefulness in connection with the prosecution of other wrongdoers.

Second, and perhaps more importantly for these purposes, Arbabsiar’s limited cooperation did not represent a determination to make a clean break with his past or to dramatically change his life in a manner that reflects true remorse. Indeed, Arbabsiar not only decided to cease his proactive assistance prematurely, he never followed through thereafter by proffering with the Government or by making a full and complete admission to the Government about his criminal activities. To the contrary, he filed a false affidavit in connection with his suppression motion in which he lied about the circumstances in which he came to provide information to the agents – the very circumstances he now casts as evidence of his sincere remorse. Arbabsiar’s limited cooperative efforts therefore do not call for a sentence below the 25 years of imprisonment called for by the Guidelines, because they do not reflect true remorse or otherwise suggest a lessened necessity for individual deterrence, a greater likelihood of rehabilitation or any other basis for a non-Guidelines sentence.

3 Defense counsel asserts that the Government declined Arbabsiar’s efforts to work in an undercover capacity in part because it “no doubt realiz[ed] [the defendant] was mentally ill . . . .” (Def. Mem. at 22). This assertion is baseless and inaccurate and should be disregarded. The agents working with Arbabsiar following his arrest had no concerns about his mental health. As set forth in the October 2012 report of Dr. Gregory Saathoff, none of the agents who were with Arbabsiar consistently for nearly two weeks ever observed behavior suggesting that Arbabsiar suffered from a mental illness.

While Arbabsiar’s lawyer’s filing is not yet docketed, these paragraphs suggest several things:

The government wanted Arbabsiar to continue cooperating, but refused his offer to serve in an undercover capacity.

The government claims Arbabsiar lied in his still sealed affidavit describing why the confession he gave during the 12 days he had no legal representation should be thrown out.

Ultimately, the 25 year sentence is largely punishment for these two presumed insults to the FBI.

Should it be?

I’ve raised questions about Arbabsiar’s treatment here and here. Even just the substantive claims his lawyer, Sabrina Shroff made, seem somewhat substantive. And the lawyer psychiatrist FBI brought in to refute claims of Arbabsiar’s impairment, Gregory Saathoff, is increasingly serving as the Bureau’s go-to hack for such functions.

More interestingly, the plea deal happened after Shroff started raising questions about the report a High Value Detainee Group scientist made about Arbabsiar’s interrogation. Boom. Plea deal, Arbabsiar’s allegedly deceitful affidavit never gets unsealed, and he goes away for long enough to prevent anyone from learning his side of the story.

Then there’s the question of cooperation (which hopefully will be made more clear in the future). They wanted him to keep cooperating (perhaps making calls to Iran that were not producing the desired effect), but didn’t want him to serve in an undercover capacity (remember, there was a deconfliction issue that came up in Arbabsiar’s naturalization application that suggests he may have done something similar in the past).

Again, we need more detail, but it suggests certain things about what the government needed Arbabsiar for — to tell a scary story — and what it didn’t need Arbabsiar for — to infiltrate IRGC. Which is interesting, given that Arbabsiar’s cousin isn’t on this list of top Iranians involved in international terrorism.

10 Responses to Scary Iran Plotter Gets 25 Years

this sentence could be a bit clearer: “And the lawyer FBI had to refute claims of Arbabsiar’s impairment is increasingly serving as the Bureau’s go-to hack for such functions.” Should it be “And the fact that the lawyer for the FBI had to refute claims….”?

Exactly how is the “deterrence” feature supposed to work relative to this sentencing? Short of suggesting that any middle eastern person should be considered well-advised never, ever to do anything that might call the attention of the U.S. government to them — because any U.S. judge can be counted on to do whatever any FBI agent tells them to do and it won’t be good — what is the lesson here? What policy guidance of the the US Attorney’s Office articulates this as a preferred policy over one which, for example, might try to encourage persons to trust and/or even cooperate with law enforcement agencies?

Two Judges Told DOJ It Had To Disclose Spying On Journalist; DOJ Found A Third Judge Instead

This probably won’t come as a surprise, but as people dig deeper into the DOJ’s surveillance of reporter James Rosen, now it’s come out that the DOJ worked extra hard to avoid having to tell Rosen they were spying on him by bouncing around from judge to judge until they found one who said okay. First, the DOJ argued that they wanted to spy on him for a while, so letting Rosen know (even after a bit of time) would interfere with the ongoing spying:

US Attorney Ronald C. Machen, Jr. argued that disclosure of the search warrant would preclude the government from monitoring the account, should such a step become necessary in the investigation. Machen added that “some investigations are continued for many years because, while the evidence is not yet sufficient to bring charges, it is sufficient to have identified criminal subjects and/or criminal activity serious enough to justify continuation of the investigation.”

Of course, since any surveillance of reporters is supposed to be especially narrowly focused, it shouldn’t have been allowed for ongoing situations. But it was. And that might be because the DOJ waited until they found a judge who bought their argument.

The new documents show that two judges separately declared that the Justice Department was required to notify Rosen of the search warrant, even if the notification came after a delay. Otherwise: “The subscriber therefore will never know, by being provided a copy of the warrant, for example, that the government secured a warrant and searched the contents of her e-mail account,” Judge John M. Facciola wrote in an opinion rejecting the Obama Administration’s argument.

Machen appealed that decision, and in September, 2010, Royce C. Lamberth, the chief judge in the Federal District Court for the District of Columbia, granted Machen’s request to overturn the order of the two judges.

This suggests, yet again, that this wasn’t a one-off effort, but rather part of a larger, concerted effort to spy on journalists and create chilling effects for whistleblowers.

I guess entrapment is business as usual these days? The FBI agents who entrapped this poor bastard should have got the 25 years. And the ‘judge’ who sentenced him should be disbarred. The entire ‘legal profession’ in the USA is nothing more than a bunch of sycophants punching their meal tickets.

This prosecution was another sick joke. Although for sickness it cannot touch the persecution of Lynn Stewart, and all the turned backs of Lynn’s colleagues. They’re not lawyers they’re ‘attorneys’, and judges, and can’t afford to lose their places in line to pass through the revolving door.

Saathoff is a psychiatrist, not a lawyer, so you may wish to correct that.

There is so much wrong with this scenario that I don’t know where to being. You’ve done an excellent job in a number of posts outlining significant questions about what the US knew about Arbabsiar, about Saathoff’s report (demonstrating that despite Saathoff’s own conclusions, and despite DoJ’s assertion that “none of the agents who were with Arbabsiar consistently for nearly two weeks ever observed behavior suggesting that Arbabsiar suffered from a mental illness” — see here), and other strange aspects to this case.

And, hey, btw, since when does the testimony of FBI agents classify as expert testimony on psychiatric diagnoses? Paging Daubert v Merrill Dow…

Rule 702. Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
(As amended Apr. 17, 2000, eff. Dec. 1, 2000.)

Frist’s eval, followed by another doctor, Joel Morgan, must have floored the government, who only afterward sought out Saathoff. The government maintains [supposedly quoting Frist], ‘Arbabsiar’s “mood disturbance,” according to the defense, “increased [Arbabsiar’s] vulnerability” to engaging in this crime and “impaired his ability to appropriately weigh the consequences of his actions.”’

Here’s what Frist actually concluded: Arbabsiar, as someone “in the throes of a manic episode”, with cognitive difficulties as documented by neuropsychological testing, “would be unlikely to be able to intelligently weigh the benefits and drawbacks of a decision to speak or not to speak…. Because I believe that Mr. Arababsiar was suffering from episodes of mania while he was being questioned by the FBI, there are serious questions as to whether any decisions made by him during this period were made rationally, with a full understanding of his consequences.

The government cleverly makes the evaluation by defense doctors about Arbabsiar’s ability to do the “crime,” but the evaluation was about Arbabsiar’s confession, not his purported crimes (though Frist did evaluate from retrospective reports from family members and others that Arbabsiar had cycling mood episodes of both depression and hypomania or mania).

Arbabsiar IQ: tested at 82, or borderline intellectual ability, sometimes called borderline mental retardation, or “dull” or many other terms. The defense doctors believe his IQ was suppressed by mental illness, and doesn’t represent his healthy underlying IQ. His memory was “borderline impaired”. His verbal fluency was “impaired”. His MMPI-2 was “consistent with mania and paranoia,” i.e., he must have had elevations on scales 6 and 9. He was unlikely to be malingering because, one, MMPI has a way of testing that, and two, he scored as average on some tests of neuropsychological functioning. Note, too, that an MRI showed abnormalities in his brain, though it’s not clear what they were. Additional note: Dr. Morgan complained that MCC interfered with his ability to conduct his evaluation.